tag:theconversation.com,2011:/ca/topics/legal-history-26061/articlesLegal history – The Conversation2017-08-24T00:31:13Ztag:theconversation.com,2011:article/818082017-08-24T00:31:13Z2017-08-24T00:31:13ZHow noncompete clauses clash with US labor laws<figure><img src="https://images.theconversation.com/files/183187/original/file-20170823-13299-1cts6v8.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=496&amp;fit=clip" /><figcaption><span class="caption">Jimmy John&#39;s tried to stop its workers from toiling for other sandwich makers.
</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Jimmy-Johns-Sells-Stake/7f2ace26f2de4a5f83fdbcfa8d4db8b4/1/0">AP Photo/David Goldman</a></span></figcaption></figure><p>Most Americans with jobs work “at-will”: Employers owe their employees nothing in the relationship and vice versa. Either party may terminate the arrangement at any time for a good or bad reason or none at all. </p>
<p>In keeping with that no-strings-attached spirit, employees may move on as they see fit – unless they happen to be among the nearly <a href="https://www.treasury.gov/resource-center/economic-policy/Documents/UST%20Non-competes%20Report.pdf">one in five workers</a> bound by a contract that explicitly forbids getting hired by a competitor. These “<a href="http://www.milkenreview.org/articles/the-rigged-labor-market">noncompete clauses</a>” may make sense for CEOs and other top executives who possess trade secrets but seem nonsensical when they are applied to <a href="http://www.baltimoresun.com/business/bs-bz-noncompete-low-wage-20170705-story.html">low-wage workers</a> such as draftsmen in the construction industry. </p>
<p>As a scholar of employment law and policy, I have many concerns about noncompete clauses – such as how they tend to make the relationship between workers and bosses too lopsided, <a href="https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2625714">suppress wages and discourage labor market mobility</a>. In addition to tracing their legal and legislative history, I have come up with a way to limit this impediment to worker mobility.</p>
<h2>How we got here</h2>
<p>Courts began to enshrine the at-will doctrine in the 19th century, making exceptions only for employees with fixed-term contracts. In <a href="https://casetext.com/case/payne-v-railroad-company">Payne v. Western &amp; Atlantic Railroad Co.</a>, the Tennessee Supreme Court ruled that a railway foreman in Chattanooga had the right to forbid his workers from buying whiskey from a merchant named L. Payne.</p>
<p>Payne had sued the railroad, claiming it couldn’t threaten to fire employees to discourage them from buying goods from a third party. The court disagreed, arguing that the railroad had a right to terminate employees for any reason – even that one. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/182834/original/file-20170821-4973-j4aj82.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=1000&amp;fit=clip"><img alt="" src="https://images.theconversation.com/files/182834/original/file-20170821-4973-j4aj82.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=237&amp;fit=clip" srcset="https://images.theconversation.com/files/182834/original/file-20170821-4973-j4aj82.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=600&amp;h=468&amp;fit=crop&amp;dpr=1 600w, https://images.theconversation.com/files/182834/original/file-20170821-4973-j4aj82.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=600&amp;h=468&amp;fit=crop&amp;dpr=2 1200w, https://images.theconversation.com/files/182834/original/file-20170821-4973-j4aj82.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=600&amp;h=468&amp;fit=crop&amp;dpr=3 1800w, https://images.theconversation.com/files/182834/original/file-20170821-4973-j4aj82.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;h=588&amp;fit=crop&amp;dpr=1 754w, https://images.theconversation.com/files/182834/original/file-20170821-4973-j4aj82.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=754&amp;h=588&amp;fit=crop&amp;dpr=2 1508w, https://images.theconversation.com/files/182834/original/file-20170821-4973-j4aj82.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=754&amp;h=588&amp;fit=crop&amp;dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Pullman strike halted national rail traffic and marked a turning point in U.S. labor history.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Pullman_strike_guard_harpers.jpg">Harper's Weekly</a></span>
</figcaption>
</figure>
<p>The notion of at-will employment and its associated lack of job protections soon rose to the level of constitutional mandate. The 1894 <a href="http://www.encyclopedia.chicagohistory.org/pages/1029.html">Pullman strike</a>, which disrupted national rail traffic, prompted Congress to pass the <a href="http://recordsofrights.org/records/67/the-erdman-act">Erdman Act</a> four years later. That law guaranteed the right of rail workers to join and form unions and to engage in collective bargaining. </p>
<p>But the Supreme Court struck down that law in 1908. Writing for the majority in <a href="https://supreme.justia.com/cases/federal/us/208/161/case.html">Adair v. United States</a>, Justice John Marshall Harlan explained that since employers were free to use their property as they wished, they could impose and enforce their own labor rules. Employees, in turn, were free to quit. Harlan wrote:</p>
<blockquote>
<p>“The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it.” </p>
</blockquote>
<p>That might sound reasonable, but the Adair ruling led to the proliferation of “yellow dog” contracts threatening workers with firing if they joined or organized unions. The term disparaged people who accepted such conditions, but the principle had widespread <a href="https://supreme.justia.com/cases/federal/us/245/229/">legal approval</a>. </p>
<p>For three decades, the at-will doctrine stymied legislation that would have protected labor rights. Even when a supervisor told a long-term employee he would be fired unless <a href="https://www.courtlistener.com/opinion/3245015/comerford-v-international-harvester-co/?">his wife had sex with the supervisor</a>, courts refused to protect the man from losing his job.</p>
<h2>Labor rights and the law</h2>
<p>With the passage of the <a href="https://www.nlrb.gov/resources/national-labor-relations-act">National Labor Relations (Wagner) Act</a> in 1935, all private sector workers and unions gained the power to collectively bargain with employers. Subsequent labor agreements, such as the one the <a href="https://www.usw.org/union/history">Steel Workers Organizing Committee</a> negotiated with U.S. Steel in 1937, made employers prove “just cause” before firing anyone. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/183189/original/file-20170823-13303-1sv699u.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=1000&amp;fit=clip"><img alt="" src="https://images.theconversation.com/files/183189/original/file-20170823-13303-1sv699u.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=237&amp;fit=clip" srcset="https://images.theconversation.com/files/183189/original/file-20170823-13303-1sv699u.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=600&amp;h=410&amp;fit=crop&amp;dpr=1 600w, https://images.theconversation.com/files/183189/original/file-20170823-13303-1sv699u.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=600&amp;h=410&amp;fit=crop&amp;dpr=2 1200w, https://images.theconversation.com/files/183189/original/file-20170823-13303-1sv699u.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=600&amp;h=410&amp;fit=crop&amp;dpr=3 1800w, https://images.theconversation.com/files/183189/original/file-20170823-13303-1sv699u.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;h=515&amp;fit=crop&amp;dpr=1 754w, https://images.theconversation.com/files/183189/original/file-20170823-13303-1sv699u.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=754&amp;h=515&amp;fit=crop&amp;dpr=2 1508w, https://images.theconversation.com/files/183189/original/file-20170823-13303-1sv699u.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=754&amp;h=515&amp;fit=crop&amp;dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Laws like the Civil Rights Act that President Lyndon B. Johnson signed in 1964 don’t protect American workers from noncompete clauses.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/LBJs-Legacy/90ea6ef61620416bbaa367f693f86257/6/1">AP Photo</a></span>
</figcaption>
</figure>
<p>The <a href="https://www.eeoc.gov/laws/statutes/titlevii.cfm">Civil Rights</a> acts of 1964 and 1991 added employment protections prohibiting discrimination based on race, gender, religion and national origin.</p>
<p><a href="https://www.ada.gov/">The Americans with Disabilities Act</a>, which Congress passed in 1990, ensured that persons with disabilities would have access to jobs with or without reasonable accommodation. </p>
<p>Those laws and other measures, including modern exceptions to the at-will rule, offer workers some security. But they provide no protection at the federal level from noncompete clauses.</p>
<h2>Push-back</h2>
<p>The leeway for employers to impose these provisions <a href="https://quirkyemploymentquestions.com/post-employment-restrictive-covenants/quirky-question-226-one-size-fits-all-national-non-compete/">varies widely from state to state</a> and is in flux. For example, <a href="https://www.treasury.gov/resource-center/economic-policy/Documents/UST%20Non-competes%20Report.pdf">Alabama and Oregon</a> have sought in recent years to limit their scope, while <a href="https://www.lexology.com/library/detail.aspx?g=aadbea62-9a31-4ae3-92dd-8198906c37f6">Georgia</a> and <a href="https://www.nytimes.com/2017/07/14/business/economy/boise-idaho-noncompete-law.html?mcubz=0">Idaho</a> have made it easier for companies to enforce them. A uniform federal rule could clarify the situation and benefit both employees and employers.</p>
<p>Critics have pointed out the disadvantages of noncompete clauses to unskilled labor. “By locking low-wage workers into their jobs and prohibiting them from seeking better-paying jobs elsewhere (companies) have no reason to increase their wages or benefits,” Illinois Attorney General Lisa Madigan said when she sued the <a href="http://www.illinoisattorneygeneral.gov/pressroom/2016_06/20160608.html">Jimmy John’s</a> fast-food franchise last year for making its employees sign noncompete clauses.</p>
<p>The chain subsequently agreed to <a href="http://fortune.com/2016/06/22/jimmy-johns-non-compete-agreements/">drop its noncompetes</a>, which had also come under fire in New York. The clauses had barred the sandwich maker’s workers from working for other firms earning more than 10 percent of their revenue from “submarine, hero-type, deli-style, pita, and/or wrapped or rolled sandwiches” for two years after leaving the Jimmy John’s payroll.</p>
<h2>A proposal</h2>
<p>In 2015, Sen. <a href="https://www.franken.senate.gov/?p=press_release&amp;id=3167">Al Franken</a> introduced legislation to ban noncompete clauses for low-wage workers. The Minnesota Democrat’s bill failed to gain enough support to become law, and, in light of President Donald Trump’s goal of reducing the number of <a href="http://abcnews.go.com/Politics/trump-signs-executive-order-remove-job-killing-regulations/story?id=45711543">federal regulations</a>, nothing presently stands in the way of states that want to <a href="https://www.usatoday.com/story/money/2017/05/27/noncompete-clauses-jobs-workplace/348384001/">expand these restrictive labor practices</a>.</p>
<p>I propose a balanced approach between the current free-for-all among the states and outlawing these clauses altogether: Congress could modify the <a href="https://www.law.cornell.edu/uscode/text/29/chapter-6">Norris-LaGuardia Act</a>. Passed in 1932, this law banned injunctions against specified union activities by removing federal court jurisdiction over those disputes. </p>
<p>Similarly, Congress could render noncompete clauses unenforceable in federal courts unless employment contracts provide due process protections, such as arbitration, against capricious or unjust discharges of employees. In exchange for job security, a worker might be willing to commit to some curtailment of other employment opportunities.</p>
<p>This approach would balance the rights of workers and management by allowing workers to trade some rights of freely accessing labor markets against better job security. </p>
<p>That is, workers would have a choice of security or mobility. Employers could choose to attract employees with incentives, such as higher salaries or more job stability. </p>
<p><a href="https://corpgov.law.harvard.edu/2014/01/29/non-compete-provisions-in-ceo-contracts/">Executive contracts</a> with noncompete clauses typically include lucrative buyout provisions and protections from arbitrary treatment. If employees with lower pay and less prestige aren’t free to get new jobs, their bosses have a corresponding duty to extend to them the rights enjoyed by people atop the corporate ladder.</p><img src="https://counter.theconversation.com/content/81808/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Raymond Hogler does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Nearly one in five employed Americans is bound by a contract restricting moves to rival companies. Here's one way to make those arrangements less common.Raymond Hogler, Professor of Management, Colorado State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/705202017-02-06T02:35:52Z2017-02-06T02:35:52ZCan you sue someone for giving you a bad reference?<figure><img src="https://images.theconversation.com/files/150442/original/image-20161216-26056-6zld8o.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=496&amp;fit=clip" /><figcaption><span class="caption">Giving a reference is protected, in defamation law, by the common-law defence of qualified privilege.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>It may be that, on the basis of a reference, you do not get the job or the scholarship or the finance for which you were applying. But despite the wide application of Australian defamation law, if you’ve been given a bad reference, you have very limited recourse.</p>
<p>Defamation law applies to all forms of communication, no matter how widely or how narrowly distributed. It recognises there can be real reputational consequences from publications, large and small. Certain types of publication are intended to have reputational consequences.</p>
<p>Giving an employment reference is a clear example of this. Often it will be positive. In many cases, though, a reference will contain negative things about the subject. This is part of a reference’s design: the referee should give a full and frank assessment. </p>
<h2>The defence of qualified privilege</h2>
<p>Giving a reference is protected, in defamation law, by the common law defence of <a href="http://www.lawhandbook.sa.gov.au/ch16s05s05.php">qualified privilege</a>. </p>
<p>Qualified privilege means there are certain occasions when an individual’s right to protect their reputation must be subordinated to a higher interest. These privileged occasions are those recognised by the case law as <a href="http://austlii.edu.au/%7Ealan/aktas.html">being necessary</a> for “the common convenience and welfare of society”.</p>
<p>Since the 19th century, it has been well-established that giving a reference is a privileged occasion. Indeed, judges regard it as an archetypal case of a privileged occasion. </p>
<p>It is not surprising that English defamation law took this position at that time. During the mid-19th century, when the common law defence of qualified privilege was crystallising, there was a <a href="https://academic.oup.com/ojls/article-abstract/18/3/381/1492902/Duties-Interests-and-Motives-Privileged-Occasions?redirectedFrom=PDF">line of English cases</a> in which servants sued their former masters over unflattering references.</p>
<p>Courts favoured the masters’ right to give their full and frank assessment of former servants over the servants’ right to protect their reputations – and to secure employment. </p>
<p>The “common convenience and welfare of society” meant it was more important that prospective masters knew what they were getting themselves in for than for servants to be able to sue successfully for defamation. It is hard to get good help these days, but it was ever thus.</p>
<p>The common law defence of qualified privilege still applies today. It provides the person giving a reference with broad protection. However, it does not provide absolute protection. As the name suggests, the protection it offers is qualified. </p>
<h2>What are the exceptions?</h2>
<p>There are two ways in which a defence of qualified privilege can be lost and the referee exposed to liability for defamation. </p>
<p>The first is if the privileged occasion is exceeded. </p>
<p>Common law qualified privilege is a narrow defence. It provides protection against liability for defamation where there is communication between people who have a community of interest, or where the person making the communication has a legal, social or moral duty to make it – and the person receiving it has a reciprocal interest.</p>
<p>This complete reciprocity of duty and interest, or community of interest, is fundamental to the common law defence of qualified privilege. So, publication to unrelated people, who have no reciprocal interest in receiving it, will destroy the privileged occasion and potentially expose the referee to liability for defamation. </p>
<p>That means if you are writing a reference, you should send it only to the person who requested it, or to the person who is making the decision about the reference’s subject.</p>
<p>The other way in which the referee can lose the benefit of qualified privilege is if they abuse the privileged occasion. Abusing a privileged occasion is normally described as being motivated by “malice”. </p>
<p>Malice is best understood as an improper motive. If a referee, in writing a reference, is spurred on by an improper motive, they may not be able to rely on a common law defence of qualified privilege. </p>
<p>An improper motive can be demonstrated by spite or ill-will on the referee’s part. But often it is shown by the referee lacking an honest belief in the truth of what’s in the reference.</p>
<p>Malice, though, is difficult to prove. In most cases – unless the referee is careless or foolish – there will be little or no direct evidence of malice. Improper motive will have to be inferred, on the balance of probabilities, from what the referee did or said. </p>
<p>The reference’s subject bears the onus of proof on establishing malice; the referee does not have to prove an absence of malice. This presents difficulties for the subject of the reference because they have to prove the referee’s subjective state of mind when giving the reference. </p>
<p>It is also not enough for the reference’s subject to prove the referee had an improper motive. People often have multiple or mixed motives. The reference’s subject has to prove the referee’s improper motive was the dominant one in publishing the defamatory reference.</p>
<p>It is difficult, then, for a reference’s subject to establish that a referee was motivated by malice. This was an intentional part of the design of this defence from the outset. The defence was intended to give latitude to a person speaking on a privileged occasion, so they would not be unduly inhibited by legal constraints.</p>
<p>Balancing the interests between the referee and the reference’s subject, Australian defamation law presumptively favours the referee. So, if you are writing a reference, you should have nothing to fear – unless you have an improper motive. </p>
<p>And if you are the subject of the reference, you have to hope the referee will only have positive things to say about you.</p><img src="https://counter.theconversation.com/content/70520/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Rolph has received funding from the Australian Research Council. </span></em></p>In many cases, a reference will contain negative things about its subject. This is part of a reference’s design: the referee should give a full and frank assessment.David Rolph, Associate Professor of Media Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/564202016-04-10T20:03:21Z2016-04-10T20:03:21ZTwenty years after the High Court's Wik decision, how does the 'judicial activism' charge stand up?<figure><img src="https://images.theconversation.com/files/116295/original/image-20160323-28178-1qwtlsa.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=496&amp;fit=clip" /><figcaption><span class="caption">Informed critique of the courts and their work is essential to the proper functioning of a democracy.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>2016 marks 20 years since the High Court handed down the <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1996/40.html">Wik Peoples v Queensland</a> decision on the extent to which pastoral leases over land in Queensland extinguished native title. This year also marks the 20-year anniversary of the stoking of the judicial activism debate in Australia.</p>
<p>It is no coincidence that the rise of the “judicial activism” terminology coincided not only with the Wik decision, but also with the new Coalition government’s campaign to ensure all arms of government focused on the protection of “mainstream” interests. The Coalition <a href="http://australianpolitics.com/1995/06/06/john-howard-headland-speech-role-of-govt.html">argued</a> these had been ignored at the expense of progressive, boutique interests during the Keating government years. </p>
<p>The terminology’s sudden prominence – one of the Coalition campaign’s byproducts – had a profound effect on the way the High Court’s work was discussed.</p>
<h2>Where did it come from?</h2>
<p>“Judicial activism” was coined in the US. It has never been regarded as a term of art in the legal field in any jurisdiction.</p>
<p>Historian Arthur Schlesinger Jr <a href="https://books.google.com.au/books?id=LLyNX6hMDCIC&amp;pg=PA564&amp;dq=arthur+schlesinger+a+life&amp;hl=en&amp;sa=X&amp;ved=0ahUKEwiso7rLp97LAhWjnqYKHbfyBP4Q6AEIITAB#v=onepage&amp;q=arthur%20schlesinger%20a%20life&amp;f=false">first used the term</a> to describe a particular voting bloc on the US Supreme Court in the 1940s. He gave no precise definition, but suggested the “activists” were more likely than the other, more restrained, voting bloc to use the US Constitution’s civil rights protections to invalidate legislation. </p>
<p>Schlesinger considered his term to be politically neutral. In academia in the 1950s and 1960s, some legal scholars expressed an <a href="http://cat.lib.unimelb.edu.au/search%7ES30?/amcwhinney/amcwhinney/1%2C6%2C48%2CB/frameset&amp;FF=amcwhinney+edward+++++1926&amp;9%2C%2C13">early scepticism</a> about his terminology. </p>
<p>Academics were aware that “activism” appeared to lack a fixed definition. Did it involve a discernible method of interpreting the constitution? Or did the “activist” label merely apply to a judicial outcome?</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/116589/original/image-20160329-13694-16mx068.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=1000&amp;fit=clip"><img alt="" src="https://images.theconversation.com/files/116589/original/image-20160329-13694-16mx068.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=237&amp;fit=clip" srcset="https://images.theconversation.com/files/116589/original/image-20160329-13694-16mx068.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=600&amp;h=856&amp;fit=crop&amp;dpr=1 600w, https://images.theconversation.com/files/116589/original/image-20160329-13694-16mx068.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=600&amp;h=856&amp;fit=crop&amp;dpr=2 1200w, https://images.theconversation.com/files/116589/original/image-20160329-13694-16mx068.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=600&amp;h=856&amp;fit=crop&amp;dpr=3 1800w, https://images.theconversation.com/files/116589/original/image-20160329-13694-16mx068.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;h=1076&amp;fit=crop&amp;dpr=1 754w, https://images.theconversation.com/files/116589/original/image-20160329-13694-16mx068.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=754&amp;h=1076&amp;fit=crop&amp;dpr=2 1508w, https://images.theconversation.com/files/116589/original/image-20160329-13694-16mx068.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=754&amp;h=1076&amp;fit=crop&amp;dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ronald Reagan helped the term ‘judicial activism’ take hold in the US.</span>
<span class="attribution"><span class="source">Reuters</span></span>
</figcaption>
</figure>
<p>The terminology only took off in public discourse in the US in the 1970s and 1980s. The presidential campaigns of both Richard Nixon and Ronald Reagan <a href="https://global.oup.com/academic/product/measuring-judicial-activism-9780195370850?cc=au&amp;lang=en&amp;">harnessed it</a> as a pejorative to describe the Supreme Court’s work. </p>
<p>Nixon and Reagan argued the court’s supposed implicitly progressive activism – protecting the rights of African Americans and the criminally accused, for instance – could only be quelled (and power returned to Congress) by a Republican president being given the opportunity to appoint strident anti-activists to the bench. </p>
<p>By this point, many academics and judges in Australia were <a href="http://sites.thomsonreuters.com.au/journals/2013/03/19/public-law-review-update-march-2013/">aware of the terminology</a>. However, they regarded it either as tainted as political language, or as a term uniquely applicable to the US. It was linked with bill of rights litigation, which is of less significance in Australia due to the lack of explicit civil rights protections in the Australian Constitution.</p>
<p>The same might be surmised of the popular media. They also avoided using the term, even as the High Court handed down politically charged decisions in the 1980s. The term remained dormant in Australia until the early 1990s.</p>
<p>“Judicial activism” only came to the fore in Australia between 1992 and 1995, as the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html">Mabo native title</a> decision was handed down, followed by a suite of decisions on <a href="https://en.wikipedia.org/wiki/Constitution_of_Australia#Protection_of_rights">implied rights</a> in the constitution. </p>
<p>A handful of commentators and academics also used it rather innocuously, in passing, <a href="https://minerva-access.unimelb.edu.au/handle/11343/57440">in this period</a>. This was perhaps because they were aware of the term’s inherent ambiguity.</p>
<p>In 1996, as “judicial activism” entered political discourse, it assumed a new dimension as a term of absolute denunciation in Australia. In the years ahead, chief justices as diverse in views as <a href="https://books.google.com.au/books/about/The_Mason_Papers.html?id=5mEpgbOPkgEC&amp;redir_esc=y">Anthony Mason</a>, <a href="http://www.abc.net.au/radionational/programs/lawreport/retiring-chief-justice-murray-gleeson/3200662">Murray Gleeson</a> and <a href="http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj10Nov09.pdf">Robert French</a> all warned against the activist label. This was because it concealed, rather than revealed, the essential critique that was being made of the High Court.</p>
<h2>How it took hold in Australia</h2>
<p>The Wik decision involved no “civil rights” questions. The High Court majority decided the grant of a pastoral lease did not necessarily extinguish native title, but would extinguish native title to the extent of any inconsistency. </p>
<p>This was hardly a judgment that promoted native title interests at any expense. But it nevertheless rankled the Coalition at both federal and state level as an example of sectional interests prevailing. The pastoralists were seemingly regarded as representative of “mainstream” interests in this case.</p>
<p>The deputy prime minister, <a href="http://newsstore.fairfax.com.au/apps/viewDocument.ac?page=1&amp;sy=nstore&amp;kw=%22judicial+activism%22+and+%22borbidge%22&amp;pb=shd&amp;pb=sag&amp;pb=age&amp;pb=smh&amp;dt=enterRange&amp;dr=1month&amp;sd=01%2F12%2F1996&amp;ed=01%2F12%2F1997&amp;so=relevance&amp;sf=text&amp;sf=headline&amp;rc=200&amp;rm=200&amp;sp=adv&amp;clsPage=1&amp;docID=news970301_0119_5657">Tim Fischer</a>, and Queensland premier, <a href="http://newsstore.fairfax.com.au/apps/viewDocument.ac?page=1&amp;sy=nstore&amp;kw=%22judicial+activism%22+and+%22borbidge%22&amp;pb=shd&amp;pb=sag&amp;pb=age&amp;pb=smh&amp;dt=enterRange&amp;dr=1month&amp;sd=01%2F12%2F1996&amp;ed=01%2F12%2F1997&amp;so=relevance&amp;sf=text&amp;sf=headline&amp;rc=200&amp;rm=200&amp;sp=adv&amp;clsPage=1&amp;docID=news970211_0228_9129">Rob Borbidge</a>, repeatedly attacked the High Court for its activism in Wik in “making [native title] law”, rather than interpreting it.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/116568/original/image-20160329-17838-17qjz6o.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=1000&amp;fit=clip"><img alt="" src="https://images.theconversation.com/files/116568/original/image-20160329-17838-17qjz6o.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=237&amp;fit=clip" srcset="https://images.theconversation.com/files/116568/original/image-20160329-17838-17qjz6o.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=600&amp;h=900&amp;fit=crop&amp;dpr=1 600w, https://images.theconversation.com/files/116568/original/image-20160329-17838-17qjz6o.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=600&amp;h=900&amp;fit=crop&amp;dpr=2 1200w, https://images.theconversation.com/files/116568/original/image-20160329-17838-17qjz6o.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=600&amp;h=900&amp;fit=crop&amp;dpr=3 1800w, https://images.theconversation.com/files/116568/original/image-20160329-17838-17qjz6o.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;h=1131&amp;fit=crop&amp;dpr=1 754w, https://images.theconversation.com/files/116568/original/image-20160329-17838-17qjz6o.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=754&amp;h=1131&amp;fit=crop&amp;dpr=2 1508w, https://images.theconversation.com/files/116568/original/image-20160329-17838-17qjz6o.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=754&amp;h=1131&amp;fit=crop&amp;dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Tim Fischer led the criticism of the High Court for the Wik decision.</span>
<span class="attribution"><span class="source">AAP</span></span>
</figcaption>
</figure>
<p>Borbidge’s view of the work of the High Court was simplistic. The High Court has always made law; this is not a matter of controversy. But the prime minister, <a href="http://newsstore.fairfax.com.au/apps/viewDocument.ac?page=1&amp;sy=nstore&amp;kw=%22judicial+activism%22+and+%22borbidge%22&amp;pb=shd&amp;pb=sag&amp;pb=age&amp;pb=smh&amp;dt=enterRange&amp;dr=1month&amp;sd=01%2F12%2F1996&amp;ed=01%2F12%2F1997&amp;so=relevance&amp;sf=text&amp;sf=headline&amp;rc=200&amp;rm=200&amp;sp=adv&amp;clsPage=1&amp;docID=news970220_0233_3803">John Howard</a>, and others tacitly acknowledged the use of the terminology after Borbidge’s remarks. </p>
<p>Within a matter of weeks, a sustained public attack on the High Court had begun. The majority judges were <a href="http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_maui.htm">described as</a> “bogus”, “purveyors of intellectual dishonesty” and “undermining democracy” in further developing a framework for the recognition of native title. </p>
<p>A judicial activist, it seemed, engaged in non-judicial behaviour. They decided cases in favour of a preferred (non-“mainstream”) litigant or interest, to reach a result that was inconsistent with a conservative worldview. Whether there was any particular method discernible as constituting activism was another question entirely. </p>
<p>These early accusations seemed to equate activism with (progressive) results-oriented decision-making. However, it appeared no early protagonists in the debate were able to flesh out their claim that the majority decision in Wik was devoid of reasoning, or a ruse to mask the court’s progressive agenda. </p>
<p>Later attempts to give the term meaning also failed to gain traction. Was activism equated with dynamic (as opposed to legalistic) reasoning? Or did it involve significant change and expansion to common law principles, often to parliament’s surprise? Or the use of non-legal sources – for instance, works on Australian history – to buttress arguments? </p>
<p>Did judicial activism involve recourse to international legal materials rather than relying on Australian precedent? Or was there no method at all? </p>
<p>The only common thread was that activism – whatever it may be – was not something a judge should ever engage in.</p>
<h2>Here to stay?</h2>
<p>Using a catchphrase such as “activism” allows a commentator to avoid giving explicit reasons for their disapproval for a decision, while nevertheless using the catchphrase to accuse the bench of judicial illegitimacy. </p>
<p>It is a serious and derogatory charge to make of a court. It is a potentially unjust charge to make if no working definition of activism is disclosed at the outset. This is especially so when a commentator’s implicit understanding of activism extends only to examining the ultimate result in the case and deciding whether it accords with their own political preferences. </p>
<p>The term, it seems, is here to stay, both in certain sections of academia and elsewhere. It has arisen as an accusation levelled at the <a href="http://samuelgriffith.org.au/docs/vol14/v14chap5.pdf">Federal Court</a> while processing refugee claims, and has been described as a potential threat that <a href="http://samuelgriffith.org.au/docs/vol18/v18chap8.pdf">might arise</a> should a bill of rights be introduced in Australia. </p>
<p>Even over the past year, commentators have argued that proposals for Indigenous recognition <a href="http://www.theaustralian.com.au/opinion/beware-expert-panels-of-any-colour/news-story/357150ce23553307cce9b46b8671cdb7">in the Constitution</a> will further encourage the courts’ activism. They have also argued that criticism of the former High Court judge presiding over the trade unions royal commission, Dyson Heydon, fails to appreciate his <a href="http://www.theaustralian.com.au/opinion/a-dissenter-to-the-left-but-a-bastion-of-impartiality/news-story/c6207728ee9088ba7c4116a899f63949">impartiality</a> as an anti-activist. </p>
<p>Will the popular media assess the potential candidates for the <a href="http://blogs.unimelb.edu.au/opinionsonhigh/2016/03/24/news-chief-justice-announces-early-resignation/">soon-to-be-vacant</a> seat of High Court chief justice through the “activist” lens?</p>
<p>Informed critique of the courts and their work is essential to the proper functioning of a democracy. Unhelpful shorthand phrases, however, do not assist with producing informed critique. Rather, they promote a form of opaque criticism that may well cloak analysis (or lack thereof) of court judgments, if not judicial outcomes.</p><img src="https://counter.theconversation.com/content/56420/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tanya Josev does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A "judicial activist", it seems, decides cases in favour of a preferred (non-“mainstream”) litigant or interest, to reach a result that is inconsistent with a conservative worldview.Tanya Josev, Lecturer, Melbourne Law School, University of MelbourneLicensed as Creative Commons – attribution, no derivatives.